Owner Takes the Garden Out of Garden Apartments to Add Housing

The growing demand for new housing has often led to creative, sometimes odd, solutions: wafer-thin buildings, home conversions both legal and illegal, apartments in former commercial spaces.

Just when it seemed that developers had exhausted every conceivable use of space for housing, the owner of a Queens garden apartment complex has come up with a novel plan: eliminate the garden and replace it with more apartments.

When residents of the complex, Bowne Trees, received news of the plan to build four four-story apartment buildings in the courtyard, there was both the expected outrage and the expected reply: surely, they complained to elected officials, this must be illegal. They cited not only the loss of open space, but also the potential for blocked access for firefighters and emergency crews.

But it turns out that the owner of the complex, Suzuki Associates, which bought Bowne Trees in 1998, was well within its rights under zoning laws, according to city officials. Now, politicians and local civic leaders are concerned that the project could spur development on hundreds of city courtyards.

''I hate to think that development of a courtyard would be setting a precedent for the rest of the borough, where we have many garden apartments with courtyards,'' said the Queens borough president, Claire Shulman.

The new four-story buildings are going up in the courtyard of the two L-shaped, Tudor-style buildings that have adjoined it since 1928. That is legal, a company spokesman said, because the 140-by-100-foot courtyard was zoned as a separate building lot when Bowne Trees was constructed on 38th Avenue between Bowne Street and Parsons Boulevard in Flushing.

''It's a separate plot for which taxes are paid separately,'' said the Suzuki spokesman, John Paone.

Ilyse Fink, a Buildings Department spokeswoman, said Suzuki could build on the site ''as of right,'' meaning that the lot complies with the zoning in the neighborhood, and also because the courtyard was not a required amenity.

''I wouldn't characterize this as setting a precedent,'' Ms. Fink continued, ''but it may give other people ideas as to the possibilities that exist for their property.''

Although the courtyard is not a required amenity under the city's definition, it is an important one as far as the residents of the 110-unit rental complex are concerned.

''Tenants are upset,'' said Jackie Bojilov, a resident of the development. ''It's sad that somebody can just come in and uproot your garden, those beautiful trees. It's a total eyesore, and it will block light for the apartments in front.''

But Mr. Paone said: ''I would argue with the terminology 'courtyard.' Prior to this, the primary purpose was to house a garbage shack, and around that was some grassy area chained off with low-lying chains because it wasn't appropriate for people loitering or children playing around a garbage area.'' Mr. Paone conceded that the shack occupied only part of the lot, which was crisscrossed by walkways and shaded by trees as tall as the old buildings.

The four new buildings will have a total of 25 two- and three-bedroom apartments renting for $1,500 to $1,750 a month. ''And the reason it's being built is the shortage of affordable, family-size apartments in Flushing,'' Mr. Paone said.

But community leaders were acrid in their opposition.

Florence Fisher, director of the Queens Community Civic Corporation, a housing preservation group, said: ''It's not just about the housing shortage. Yes, everybody's hungry for apartments. But it's also about greed. Not every inch of land has to be built on.''

Michael Kwartler, a zoning consultant who is the author of the city's regulations for ensuring that development is undertaken within the context of the neighborhood, said countless residential complexes throughout the city could be vulnerable to similar development. City officials said they knew of no similar projects under way.

Mr. Kwartler said that in 1974, the city created special planned community preservation districts to protect open space in certain large-scale developments, including Stuyvesant Town on the East Side of Manhattan, Parkchester in the Bronx and Fresh Meadows in Queens. To be designated, however, developments must have at least 1.5 acres and three buildings.

''The idea was to prevent what's now going on on this smaller property,'' Mr. Kwartler said. ''My guess is there are probably countless developments that have clustered open space, albeit at a smaller scale than would be found in one of these planned communities. Many of them may be vulnerable to having those open spaces built on.''

Mr. Kwartler, however, said that even if the courtyard was on a separate lot, construction there might constitute ''a deprivation of service.''He said: ''There's a common-law principle called a continuing expectation. If you create the expectation that the open space is part of your services, what people are buying into, then over time they have a right to it.''

In 1984, the State Supreme Court ruled that the developer Harry B. Helmsley could not construct buildings on two small parks at Tudor City in Manhattan, even though the parks were on separate zoning lots. ''The judge said they had created an expectation in the tenants' minds that those parks were part of what they were paying for with their rent, part of the amenities,'' Mr. Kwartler said. ''So that superseded the fine print in the lease, which said those parks were not part of what you're getting.''

One tenant at Bowne Trees produced a rider to his 1996-98 lease that laid out rules for what it called ''the garden,'' including no trespassing and no bike riding. The rider also says that the rules ''must be adhered to in order to provide all tenants with a peaceful, clean and beautiful environment to which they are entitled.''

Marilyn Bitterman, district manager of Community Board 7, said she visited the Bowne Trees site and came away with another objection. ''If you build in the courtyard, it limits access to the existing development,'' she said. ''God forbid there's a fire in an old building. I think there would be a limited turn radius for the Fire Department to get in.''

Mr. Paone said there would be 30-foot-wide walkways between the old and new buildings, ''big enough, obviously, to drive a truck down.''

But Battalion Chief Brian Dixon, a Fire Department spokesman, said, ''We won't be able to get a fire truck in there.'' Still, he said, firefighters could get to the old buildings. ''It would be similar to what they did years ago, what we used to refer to as a rear tenement back then, buildings in front of buildings,'' he said.

''You could go in there with portable ladders,'' Chief Dixon added. ''It would not be a normal hose stretch, but we can do it.''

Bowne Trees is directly behind Bowne House, the landmark farmhouse where John Bowne struck a blow for religious freedom in the 1660's by inviting Quakers to assemble, in defiance of a decree by the New Netherlands governor, Peter Stuyvesant.

Evangeline Egglezos, director of the Bowne House Historical Society, said: ''As a longtime Flushing resident, I'm concerned that open spaces and garden courtyards, which represent a marvelous amenity, are being taken away. The streetscape then becomes an abomination.''

Mrs. Shulman, the borough president, said she faced conflicting concerns. ''We don't have enough housing,'' she said. ''The other side is there is precious little open space.''

Pointing out that since 1986 her office has successfully promoted the rezoning of 28 Queens neighborhoods that were ''inappropriately zoned,'' Mrs. Shulman said, ''this is the first case like this that's come to us.''

''We're going to find out whether we have a good legal reason to stop this,'' she said, ''and we will follow through on similar situations.''